Having waged literally thousands of battles against Getty Images’ copyright trolling program I was not surprised to see that they engaged a French law firm to attack US authors for alleged defamation in France. That’s what happened to a client of mine recently who has a blog that exposes, challenges and criticizes Getty Images’demand letter program. You can learn more about it at his site Extortionletterinfo.com (ELI) where I am a legal adviser. He received a letter from a Vanessa Bouchara of Cabinet Bouchara – Avocats, where she claims to be an intellectual property specialist. Her complaint essentially revolves around the use of the word “extortion” and it variables to describe what Getty does. We have been down this road endlessly and US courts have recognized that terms such as “extortion” and blackmail” have a secondary meaning outside the criminal charges definition. Avocat Bouchara lists about ten examples where this harsh language was used by my client and some third parties who posted on the site. She also states that she has been instructed to commence litigation should the “disparaging” comments not be removed within eight days. When my client called me about it, I told him not to worry about it. First of all the Speech Act makes foreign defamation judgments unenforceable in the United States unless the foreign findings are consistent with the First Amendment of the US Constitution. Second of all, a quick internet search revealed that French law is essentially similar – that is if the target is a foreign company who has no business in France, then the offending language must be judged by that country’s code of conduct. So I advised him that these expressions of opinion are wholly protected by the First Amendment. Third of all, France has a very short statue of limitation for defamation. A cause of action must be started withing three months of publication. That includes on-line publication. Since these statements were made years ago, the claim would apparently be time-barred in France.
When he heard the weakness of the claim, my client asked me if I thought that the attorney was acting on her own without Getty US’ knowledge and approval I said “No way.” She specifically states in her letter that she has received instructions to file suit and what would make her act on her own? The issue was picked up by my friend and colleague Eugene Volokh of the wildly popular blog, The Volokh Conspiracy. He actually reached out to Getty because, like my client, he found it hard to believe that Getty could authorize such a frivolous demand. Here is their response:
Your inquiry to Ms Bouchara of CABINET BOUCHARA – Avocats has been brought to Getty Images’ attention and we wanted to provide the below statement from Getty Images:
Cabinet Bouchara was retained as our outside counsel in France, having previously been granted limited permission to act on Getty Images’ behalf in this region only. The firm were under no means sanctioned to contact sites outside of this jurisdiction, including in North America, however it has come to our attention that this has in fact unfortunately occurred.
This practice has been ceased immediately and we apologize for the error.
Kind regards, …
I was very surprised that they actually claimed they had no idea this French lawyer was doing that. I don’t believe to for a second. I’m not buying it for a second. This is multi-national major corporation that is second only to perhaps Disney in its attempts to protect and make money off of its intellectual property. A few years ago, they paid PicScout, a small Israeli company, over $20MM for the software PicScout developed to search websites for images and match them to the Getty catalog. They formed a separate entity, License Compliance Services (LCS), to pursue infringement claims against folks who used a purported Getty Image picture on their website. LCS now does this for almost all of Getty’s competitors so Getty is making money off alleged infringement from its competitors as well. They have employed a well-respected Seattle law firm to file a smattering of lawsuits around the country so that people who get these letters will see that they do in fact file suit on occasion. They have tried left and right to give ELI and myself headaches and battles on various fronts. So nothing about this company says they are casual about their infringement efforts. I am reminded of the French police captain in Casablanca who shuts down Rick’s Cafe because he is “shocked, shocked to find that gambling is going on here” as he receives his winnings.
Ms. Bouchara has written an apology to my client for her letter. That’s great. But I wonder if she has attacked any other bloggers in a similar fashion who maybe complied out oof fear of being dragged into a French courthouse.
Thanks also to my friend Eugene Volokh of the Volokh Conspiracy for weighing in on this. Here is a link to his article